RANI R MUKERJI, V. ASST CEN CIR 22,

MA 387/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2889 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 25-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PAVAN KUMAR BEER LA
• Assessee Lawyers: B V ZHAVERI
• Keywords: Question of law; Difference of opinion

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI B.R.BASKARAN (AM) AND VIVEK VARMA,( JM) . . , , MISC.APPLICATION NO.387/MUM/2014 ARISING OUT OF I.T(SS).A. NO.16/MUM/2012 ( / BLOCK PERIOD :1990-91 TO 2001-02) MS.RANI R MUKERJI, 701, VIDYA APARTMENT, JUHU CHURCH ROAD, MUMBAI-400049 / VS. ASSTT.COMMISSIONER OF INCOME TAX CC 22, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( / APPLICANT) .. ( / RESPONDENT) ! ./ '# ! ./ PAN/GIRNO.: AALPM8973B $ / APPLICANT BY : SHRI B V ZHAVERI % $ /RESPONDENT BY : SHRI PAVAN KUMAR BEERLA & ' % () / DATE OF HEARING : 27.2.2015 *+ % () /DATE OF PRONOUNCEMENT : 4.3.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION SEEKING RECTIFICATION OF THE ORDER DATED 31.7.2014 PASSED I N IT(SS)A NO.16/MUM/2012. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SUBM ITTED THAT THE TRIBUNAL, IN THE ABOVE SAID ORDER, HAS CONFIRMED TH E PENALTY LEVIED U/S 158BFA(2) OF THE ACT ON THE ADDITION OF RS.9.00 LAK HS. HE SUBMITTED THAT THE TRIBUNAL HAD EARLIER CONFIRMED THE SAID ADDITIO N IN THE QUANTUM APPEAL AND THE ASSESSEE HAS FILED APPEAL BEFORE THE HONBL E HIGH COURT OF BOMBAY CHALLENGING THE CONFIRMATION OF ADDITION OF RS.9.00 LAKHS. HE SUBMITTED THAT THE HONBLE HIGH COURT HAS ADMITTED THE APPEAL AND THE MA NO.387 /MUM/20 2 SAID ADMISSION MAKES IT CLEAR THAT THE ADDITION IS A DEBATABLE ONE AND HENCE THE PENALTY CANNOT BE SUSTAINED ON THAT ADDIT ION. THE LD A.R SUBMITTED THAT, IN SUPPORT OF THIS PROPOSITION, THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH RENDE RED IN THE CASE OF M/S EKTA EXPORTS (IT(SS)A NO.27/MUM/2011 DATED 24.8.201 2), WHEREIN THE CO-ORDINATE BENCH OF TRIBUNAL HAD HELD THAT WHERE A SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMITTED BY THE HONBLE HIGH COURT AGAINST THE ADDITION CONFIRMED BY THE TRIBUNAL, THEN NO PENALTY CAN BE I MPOSED U/S 271(1)(C). THE LD A.R SUBMITTED THAT THE TRIBUNAL, IN THE ASSE SSEES CASE, HAS HELD THAT THE DECISION IN THE CASE OF EKTA EXPORTS (SUPR A) WAS RENDERED IN THE CONTEXT OF THE PROVISIONS OF SEC. 271(1)(C) OF THE ACT. THE LD A.R, BY INVITING OUR ATTENTION TO THE ORDER OF EKTA EXPORTS , SUBMITTED THAT THE CO- ORDINATE BENCH HAS ONLY ADJUDICATED THE PENALTY LEV IED U/S 158BFA(2) OF THE ACT. ACCORDINGLY, HE SUBMITTED THAT THE TRIBUN AL HAS COMMITTED AN ERROR IN INTERPRETING THE ORDER OR M/S EKTA EXPORTS (SUPRA) AND THE SAME IS A MISTAKE APPARENT FROM RECORD. ACCORDINGLY HE PRA YED THAT THE IMPUGNED ORDER IS REQUIRED TO BE CORRECTED. 3. THE LD A.R FURTHER SUBMITTED THAT THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IS BINDING ON ANOTHER CO-ORDI NATE BENCH OF THE APPELLATE TRIBUNAL AS HELD BY THE HONBLE SUPREME C OURT IN THE CASE OF SUB INSPECTOR ROOPLAL VS. LTD GOVERNOR (2000)(1 SCC 644 @ 654). HE SUBMITTED THAT THE HONBLE APEX COURT, IN THE ABOVE CITED CASE, HAS HELD THAT IF THE SUBSEQUENT BENCH OF THE TRIBUNAL WAS OF THE OPINION THAT THE EARLIER VIEW TAKEN BY THE CO-ORDINATE BENCH OF THE SAME TRIBUNAL WAS INCORRECT, THEN IT OUGHT TO HAVE REFERRED THE MATTE R TO A LARGER BENCH SO THAT THE DIFFERENCE OF OPINION BETWEEN THE TWO CO-O RDINATE BENCHES ON THE SAME POINT COULD HAVE BEEN AVOIDED. THE LD. A.R FU RTHER SUBMITTED THAT THE LD. JUDICIAL MEMBER WAS THE SAME IN BOTH THE BE NCHES AND HENCE A DIFFERENT VIEW SHOULD NOT HAVE BEEN TAKEN AND THE M ATTER SHOULD HAVE BEEN REFERRED TO THE LARGER BENCH. MA NO.387 /MUM/20 3 4. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE RE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER OF THE T RIBUNAL, SINCE THE TRIBUNAL HAS ONLY EXPRESSED THE VIEW THAT THE QUEST ION OF DEBATABLE ISSUE WOULD BE RELEVANT ONLY IN RESPECT OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT IN VIEW OF THE EXPLANATION-1 GIVEN UNDER SEC. 271(1 )(C) OF THE ACT. SINCE THE SAID EXPLANATION CANNOT BE EXTENDED TO THE PENA LTY LEVIED U/S 158BFA(2) OF THE ACT, THE TRIBUNAL HAS HELD THAT TH E CONTENTION THAT ADMISSION OF SUBSTANTIAL QUESTION OF LAW BY THE HON BLE HIGH COURT WOULD MAKE THE ISSUE DEBATABLE SHALL NOT APPLY TO THE PEN ALTY LEVIED U/S 158BFA(2) OF THE ACT. ACCORDINGLY, THE LD D.R SUBM ITTED THAT, SINCE THE TRIBUNAL HAS EXPRESSED A CONSCIOUS VIEW, THE SAME W ILL NOT FALL IN THE CATEGORY OF MISTAKE APPARENT FROM RECORD. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RE CORD. A PERUSAL OF THE IMPUGNED ORDER OF THE TRIBUNAL, MORE PARTICULARLY P ARAGRAPH 12 OF THE ORDER, WOULD SHOW THAT THE TRIBUNAL HAS CONSIDERED THE DECISION RENDERED BY THE CO-ORDINATE BENCH IN THE CASE OF EKTA EXPORT S (SUPRA). THE TRIBUNAL HAS NOTED DOWN THAT THE EXPLANATION 1 TO SEC. 271(1 )(C) PROVIDES THAT AN ASSESSEE CAN ESCAPE FROM PENALTY LEVIED U/S 271(1)( C) OF THE ACT, IF THE BONAFIDES OF THE ASSESSEE ARE PROVED. THE CO-ORDIN ATE BENCH OF TRIBUNAL, IN THE CASE OF EKTA EXPORTS (SUPRA), HAD FOLLOWED T HE DECISION RENDERED IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS PVT LTD V S. ITO (ITA NO.2379/MUM/2009 DATED 18-03-2011), WHEREIN IT WAS HELD THAT THE ADMISSION OF SUBSTANTIAL QUESTION OF LAW BY THE HON BLE HIGH COURT LENDS CREDENCE TO THE BONA FIDES OF THE ASSES SEE. 6. THIS BENCH OF THE TRIBUNAL NOTICED THAT THE CO- ORDINATE BENCH, IN THE CASE OF EKTA EXPORTS (SUPRA) DID NOT EXAMINE ABOUT THE APPLICABILITY OF EXPLANATION 1 GIVEN UNDER SEC. 271(1)(C) TO THE PEN ALTY LEVIED U/S 158BFA(2) OF THE ACT. HOWEVER, IN THE PRESENT CASE , THE TRIBUNAL HAS TAKEN THE VIEW THAT THE EXPLANATION 1 GIVEN UNDER S EC. 271(1)(C) CANNOT MA NO.387 /MUM/20 4 BE MADE APPLICABLE TO THE PENALTY LEVIED U/S 158BFA (2) OF THE ACT. THIS BENCH OF THE TRIBUNAL HAS ALSO TAKEN THE VIEW THAT THE QUESTION OF EXAMINATION OF BONA FIDES OF THE ASSESSEE SHALL ARI SE ONLY IN RESPECT OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT, IN VIEW OF THE EXPLANATION-1 GIVEN UNDER SEC. 271(1)(C) OF THE ACT. SINCE THE PROVISI ONS OF SEC. 158BFA(2) DOES NOT CONTAIN ANY PROVISION AS THAT OF EXPLANATI ON 1 TO SEC. 271(1)(C) OF THE ACT, THE TRIBUNAL TOOK THE VIEW THAT THE CONTEN TION THAT BONA FIDES OF THE ASSESSEE DUE TO ADMISSION OF SUBSTANTIAL QUEST ION OF LAW BY THE HONBLE HIGH COURT IS NOT APPLICABLE IN RESPECT OF PENALTY LEVIED U/S 158BFA(2) OF THE ACT. ON APPRECIATION OF THESE LEG AL POINTS, THE TRIBUNAL DID NOT FOLLOW THE DECISION RENDERED BY THE CO-ORDI NATE BENCH IN THE CASE OF EKTA EXPORTS (SUPRA). 7. THE LD A.R CONTENDED THAT THE DECISION RENDERE D BY ONE CO-ORDINATE BENCH IS BINDING ON ANOTHER BENCH. HOWEVER, WE HAV E POINTED OUT EARLIER THAT THE CO-ORDINATE BENCH, IN THE CASE OF EKTA EXP ORTS (SUPRA), DID NOT EXAMINE ABOUT THE APPLICABILITY OF EXPLANATION 1 GI VEN UNDER SEC. 271(1)(C) TO THE PENALTY LEVIED U/S 158BFA(2) OF TH E ACT. HENCE, WE ARE UNABLE TO AGREE WITH THE CONTENTIONS OF THE LD A.R. IF THE CO-ORDINATE BENCH HAD CONSIDERED THE ABOVE SAID QUESTION AND IF IT HAD TAKEN THE VIEW THAT THE EXPLANATION 1 TO SEC. 271(1)(C) IS ALSO AP PLICABLE TO SEC. 158BFA(2) AND HENCE BONA FIDES OF THE ASSESSEE WO ULD RELIEVE HIM FROM THE PENALTY LEVIED U/S 158BFA(2) OF THE ACT, THEN I T CAN BE SAID THAT THE SAID DECISION SHOULD HAVE BEEN FOLLOWED BY THIS BEN CH OF TRIBUNAL. 8. ACCORDINGLY, WE ARE OF THE VIEW THAT THE TRIBUN AL HAS TAKEN A CONSCIOUS VIEW OF THE MATTER BY DULY CONSIDERING AL L THE RELEVANT PROVISIONS OF THE ACT AND ACCORDINGLY WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. ACCORDINGLY WE REJECT THE SAME. MA NO.387 /MUM/20 5 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 4TH MAR, 2015 . *+ & , - !.4TH MAR, 2015 + % 2' 3 SD SD ( /VIVEK VARMA) ( . . / B.R. BASKARAN) /JUDICIAL MEMBER / ACCOUNTANT MEMBER & !' MUMBAI: 4TH MAR,2015. . . ./ SRL , SR. PS !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & 4( ( ) / THE CIT(A)- CONCERNED 4. & 4( / CIT CONCERNED 5. 6. 52 ( 6 , ) 6 , & !' / DR, ITAT, MUMBAI CONCERNED 2 7' / GUARD FILE. 8 & / BY ORDER, TRUE COPY 9 !' (ASSTT. REGISTRAR) ) 6 , & !' /ITAT, MUMBAI